E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8001205/2024 (V)5 Held on November 2024 Employment Judge J M Hendry Mr R Bialonski v National Oilwell Varco UK Limited — 2024

The claimant's ET1 raised unfair constructive dismissal. At the case management hearing on 5 November 2024, he applied to amend the claim to add perceived race discrimination, saying that he had been treated as an outsider and excluded from decision-making, holiday requests, and grievance and appeal processes. The respondent opposed the amendment, relying on Selkent Bus Co Ltd v Moore and arguing that it would add a new out-of-time claim and increase complexity and expense.

Employment Judge Hendry refused the amendment on 8 November 2024. The tribunal held that the claimant's case did not amount to discrimination by perception within the meaning discussed in Chief Constable of Norfolk v Coffey, because being an 'outsider' is not a protected characteristic. The judge also considered that, even if the application were treated as an attempt to plead direct race discrimination, the underlying facts were already known when proceedings were raised and there was no good reason why a race discrimination claim had not been included from the outset.

Applying the Selkent approach and balancing the injustice and hardship of allowing or refusing the amendment, the tribunal accepted that a new race discrimination claim would add complexity and cost for the respondent. It concluded that it would not be appropriate to allow a new race discrimination claim out of time and refused the application. No monetary remedy was awarded because the amendment was refused and the merits of any discrimination claim were not determined.